Raising the EIA Screening Thresholds
By Chris Peacock
The Government published on 31st July a consultation document setting out further changes to the planning system in England. This blog examines in more detail the proposed changes to the screening procedures for EIA and the implications for developers.
The Government’s proposal is to raise the threshold at which the need for EIA should be considered for industrial estate and urban development projects located outside of sensitive areas from 0.5 ha to 5 ha. It is estimated that this would reduce the number of screening requests submitted to LPAs in England by around 1,300 per year.
Over the past few years, case law precedents in relation to EIA screening have established the need for Screening Opinions from LPAs to be based on sufficient information to make an informed judgement. In practice, this requires that the applicant commissions a series of technical assessments that inform the Screening Report to demonstrate that significant environmental effects are unlikely and that EIA would not be required. This amounts at times to carrying out a reasonable proportion of the work that would have been part of an EIA simply in order to rule it out. Whereas this approach is reasonable for larger sites and more complex developments it can be hugely disproportionate in the case of smaller developments that just exceed the 0.5ha threshold and which have little chance of generating significant environmental effects.
In light of this, the Government’s proposals to raise the thresholds at which screening is required should be seen as a significant positive for developers, who can proceed to the planning application stage safe in the knowledge that their smaller, more straightforward developments are unlikely to be challenged, as has often been the case, on the appropriate application of the screening process by LPAs. Taking the decision on smaller applications out of the hands of the LPA also reduces the risk of EIA being requested as a precautionary measure by LPAs anxious to avoid such legal challenges.
It is also notable that the increase in the threshold would reduce the administrative burden on LPAs, who are legally required to respond to requests for a screening opinion within three weeks and provide detailed reasons for their decision. In reality, screening opinions often take much longer than three weeks to produce as LPAs will usually consult a range of consultees before issuing the opinion, which is another source of potential delays to the planning and development process.
In terms of the possibility of developments that have the potential to have significant effects being ‘missed’ as a result of these changes, it is worth noting that developments that are located in sensitive areas such as SSSIs or AONBs would be exempt from the increased thresholds and where developments are likely to have significant impacts regardless of site size, such as with tall buildings, these should still be subject to the EIA process. These caveats should ensure that those developments that may need EIA are still subject to a thorough screening and full EIA where necessary, in accordance with the EIA Regulations.